Jason Spears

9th Circuit Court of Appeals

Civil Rights § 1983: A state does not commit a violation of the Equal Protection Clause of the Fourteenth Amendment by not filling the gap left “by Congress’s withdrawal of federal funding for Compact of Free Association with the United States residents.”

Immigration: The Court of Appeals deferred to the adverse credibility ruling of the Immigration Judge against an asylum applicant whose testimony was determined to be not credible and who failed to provide “reasonably obtainable corroborating evidence” of her testimony.

Immigration: The Board of Immigration Appeals abused its discretion in denying a motion to reopen because it failed to analyze the DHS’s opposition to the motion, apply the motion to the reopen standard, or provide a reasoned explanation for its decision.

Tax Law: Under 26 U.S.C. § 6672, assets are “encumbered” only if the taxpayer has a legal obligation to use the funds for a purpose that is superior to the interests of the Internal Revenue Service, and the Air Transportation Safety and System Stabilization Act did not affect the bankrupt taxpayer’s obligation to remit the excise tax to the federal government.

Immigration: The bar for seeking a waiver for inadmissibility under Immigration and Nationality Act § 212(h) “does not apply to persons who adjusted to lawful permanent resident status after having entered into the United States by inspection.”

Arbitration: A plaintiff has not entered into a contract to arbitrate with a third party when the third party is insufficiently identified as a contracting party; even if the plaintiff has entered into a contract to purchase, under the Federal Arbitration Act the plaintiff has not entered into a contract to arbitrate.

Immigration: A lawful permanent resident convicted under California Penal Code § 288(c)(1) has been convicted of an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(F) and is removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

Administrative Law: An applicant has a "colorable constitutional claim" of a violation of due process if an administrative law judge does not address all of the applicant's reasons for good cause when denying the applicant's request for a hearing about the untimely filing of a social security benefits application.

Immigration: When an alien is “subject to an extant withholding of removal,” the Department of Homeland Security may file a Notice to Appear, and there does not need to be a separate hearing; the government must demonstrate the grounds for the termination of withholding of removal by a preponderance of evidence.

Habeas Corpus: Overlapping claims under federal and state law may be considered adjudicated even if one is not specifically addressed by a lower court; a juror who does independent research and shares that research to be relied upon by the other jurors in violation of the judge's order acts improperly and may be dismissed.

Environmental Law: “Disposal” of hazardous waste under the Resource Conservation and Recovery Act, 42 U.S.C. § 6928, begins with an “act of disposal,” not an individual’s “subjective decision to dispose.”

Immigration: A lawful permanent resident is removable for the offense of taking a vehicle without consent, in violation of California Vehicle Code § 10851(a), because it is considered a “theft offense” that qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43).

Attorney Fees: A plaintiff that is awarded an arbitration award including interest on contract damages is not precluded from a district court also awarding interest on the remaining portions of the arbitration award, and Nevada law allows a plaintiff to collect “post-award, pre-judgment interest on the non-contract damages portions of the arbitration award from the date of the awards through the date of payment” as well as attorney’s fees.

Consumer Credit: Non-judicial foreclosures do not need to comport with the Uniform Commercial Code or do they require the production of the promissory note before a sale, and successor trustees are not unauthorized to initiate foreclosure proceedings.

Immigration: When the Immigration Judge or Board of Immigration Appeals could have addressed a claim, the claim does not fall within the exhaustion exception for constitutional challenges to immigration laws and procedures, and the Ninth Circuit will dismiss the claim for lack of jurisdiction.

Attorney Fees: For the purposes of 42 U.S.C. § 1988, a party may be considered the prevailing party if a preliminary injunction is granted, based on a finding that the party was likely to succeed on the merits, even if a settlement was reached before final adjudication.

Immigration: District court’s grant of a preliminary injunction, which required “the government to identify all class members, detained pursuant to 8 U.S.C. §§ 1226(c) and 1225(b) … and ‘provide each of them with a bond hearing before an Immigration Judge with power to grant their release’” was upheld.

Administrative Law: The district court properly dismissed the plaintiffs’ claims when there was no “live case or controversy” about visa cut-off dates and allocation of visa numbers, and when the plaintiffs did not allege that the “defendants failed to take discrete actions they were legally required to take.”

Immigration: The decision by the Department of Education to deny a Stafford loan to an alien awaiting a grant of asylum was proper since the alien could not provide evidence from the Immigration and Naturalization Service that he was not in the United States temporarily.

Criminal Law: The Supreme Court’s holding in Flores-Figueroa v. United States does not change the Ninth Circuit’s holding “that the government need not prove that a defendant knew the firearm or ammunition had traveled in interstate commerce in order to obtain” a conviction under 18 U.S.C. § 922(g)(1) because the interstate commerce portion is merely jurisdictional.

Immigration: The Board of Immigration Appeals (BIA) must explain its basis for using the “orderly pursuit of justice” and “meaningful risk of harm” rationales in determining that an individual committed a particularly serious crime before the BIA’s determination can be evaluated for its legal adequacy.

Immigration: The Ninth Circuit does not have jurisdiction over a plaintiff’s claim that she did not receive due process because her request for cancellation of removal was denied even though her husband’s cancellation of removal request had been granted based on similar circumstances. The Board of Immigration Appeal (BIA) “committed an error of law” when it relied on a categorical rule that the “availability of alternative relief necessarily undercuts a cancellation of removal claim of hardship to the applicant’s qualifying relative.”

Civil Law: A plaintiff’s 2008 claims under the Religious Land Use and Institutionalized Persons Act and the First Amendment, founded upon the denial of his requests for a conjugal visit with his wife, were based on an independent act, and therefore were not time-barred and “pursuant to the same regulation” of his previously denied request for a conjugal visit in 2002.

Immigration: If a prior ruling of the Ninth Circuit conflicts with a reasonable interpretation of the Immigration and Nationality Act (INA) by the Board of Immigration Appeals’ (BIA), the Ninth Circuit will defer to the BIA’s interpretation, which can be retroactively applied.

Civil Procedure: The Federal Civil Procedure Rule 8(a)(2)’s pleading standard can be satisfied for a complaint of wrongful discharge under Oregon law and age discrimination based on circumstantial evidence if the complaint establishes a prima facie case of age discrimination and alleges that the plaintiff was fired after requesting Family Medical Leave.

Immigration: The written advisals on the I-589 asylum application form gives applicants adequate notice of the repercussions of “knowingly filing a frivolous asylum application” and, as required by 8 U.S.C. § 1158(d)(4)(A), of the privilege of having representation by counsel.